Conditions that apply to all on-Plan funds for 2019

Conditions that apply to all on-Plan funds for 2019

These conditions apply to all on-Plan funds for 2019. They are generic conditions that are additional to the conditions specific to each fund, and conditions specific to an individual tertiary education organisation (TEO).

These conditions apply to all on-Plan funds for 2019. They are generic conditions that are additional to the conditions specific to each fund, and conditions specific to an individual tertiary education organisation (TEO).

There are also generic conditions that apply to all off-plan funds for 2019.

Please refer to individual funds for the conditions that are specific to each fund.

1. Funding

1.1 Subject to:

(a) your compliance with the Conditions;

(b) our rights to suspend or revoke the Funding as set out in the Education Act;

(c) the relevant Funding Mechanisms continuing in effect; and

(d) paragraph 1.5 of this Funding Confirmation;

we will provide you with the Funding specified in Appendix 1 in respect of the Funding Period.

1.2 Subject to our future approval, we intend to provide you with the Indicative Funding specified in the Key Particulars (if any).

1.3 In addition to our right to suspend, revoke or withdraw some or all of the Funding, in order to ensure accountability for public money, we will:

(a) monitor your enrolment data and, if you are tracking below funded volumes, we may implement either a reduced payments schedule or an Investment Plan amendment; and/or

(b) recover funding for under-delivery of the programmes and activities described in your Investment Plan, in accordance with the Conditions.

1.4 Amounts specified in Appendix 1 are in New Zealand dollars and exclude GST. We will pay you the Funding plus GST, if applicable.

1.5 Notwithstanding any other term in this Funding Confirmation, you acknowledge that our ability to pay the Funding depends on Government continuing to appropriate sufficient funding for the relevant Fund. We are not required to make Funding available to you where there is not a Government appropriation that permits us to do so. We will advise you in advance, and as soon as reasonably possible, if the Funding cannot be made available to you for this reason.

2. Conditions

The Conditions in this paragraph 2 are imposed on the Funding specified in this Funding Confirmation. Conditions are imposed pursuant to section 159YC(2) of the Education Act. The Conditions specified in Part 13A of the Education Act for on-Plan funding are also imposed on the Funding specified in this Funding Confirmation.

2.1 Supply of information

(a) You must supply to us information relating to your financial viability, if we notify you that we require that information.

(b) You must supply to us information about your subcontracting arrangements when we request that information.

(c) You must notify us at least 28 days before, or as soon as practicable if it is not possible for you to notify us at least 28 days before:

(i) you have a Change of Control (see definition below)

(ii) you transfer (or agree to transfer) all or a material part of your assets to a third party

(iii) you merge with or acquire any other entity or business, or

(iv) there is any change to the persons who make up your governing body.

(d) You must notify us immediately if:

(i) any record required to be kept under section 159YD(1) of the Education Act has been lost or damaged

(ii) you are no longer able to comply with a Condition

(iii) your NZQA registration or accreditation is cancelled (relevant if you are a PTE)

(iv) you have an Insolvency Event (see definition below)

(v) you have changed your name, or

(vi) the location or locations at which you deliver a course or courses has changed.

Definitions used in this paragraph 2.1

"Insolvency Event" means, in relation to you, the occurrence of any of the following events:

(A) any step taken in or toward the making of any compromise, proposal or deed of arrangement with all or some of your creditors

(B) the appointment of a liquidator, provisional liquidator, receiver, receiver and manager, voluntary administrator, statutory manager, or similar official in respect of you or the whole or part of your assets

(C) the suspension or threatened suspension of the payment of your debts

(D) you cease or threaten to cease to carry on all or any material part of your business or operations

(E) a distress, attachment or other execution is levied or enforced upon, or commenced against, any of your assets and is not discharged or stayed within 10 business days, except, in each case, when we are satisfied that that you are contesting the same in good faith by appropriate proceedings

(F) cessation of your business in New Zealand, or

(G) any other insolvency event or proceedings analogous to any of the foregoing occurring in any relevant jurisdiction.

"Change of Control" means, in relation to a person (the "first person"), when a person acquires Control of the first person or when a person who controls the first person ceases to do so, and

"Control" means, in relation to a person (the "first person"), the ability of another person (the "second person") to ensure that the activities and business of the first person are conducted in accordance with the wishes of the second person, whether through ownership of voting shares, contract or otherwise. Without limitation, the direct or indirect beneficial ownership of more than 50% of the voting rights in a body corporate is deemed to constitute Control.

2.2 Source and use of funding

(a) You must:

(i) not (without our prior written consent) seek or obtain any funding from any Crown source other than the TEC to fund a programme or training scheme that is delivered using the Funding, and

(ii) notify us immediately if you become aware of any circumstances that might result in a breach of subparagraph (i) of this Condition.

(b) You must only use the Funding:

(i) lawfully, responsibly, and for the purposes for which the Funding is provided, and

(ii) in a manner consistent with the appropriate use of public funds.

2.3 Fund-specific Conditions

You must comply with the Fund-specific Conditions set out in Appendix 2.

2.4 Organisation-specific Conditions

You must comply with the Organisation-specific Conditions set out in Appendix 3.

2.5 Organisation to make information available to TEC and its appointed representative for the purpose of monitoring

By accepting the Funding you are deemed to have acknowledged that one of our statutory functions is to monitor the performance of organisations receiving funding from us, and that it is a statutory condition that you must maintain certain records and supply certain information to us. Accordingly, by accepting the Funding, you are deemed to have acknowledged that we need access to certain information to enable us to undertake our monitoring activities and, as such, you authorise us (and any representative acting on our behalf) to have reasonable access to information needed by us to undertake our review and monitoring function. This includes you authorising us and our appointed representatives to have reasonable access to your premises and any premises where your records are kept for the purpose of enabling monitoring and review activities to be undertaken at those premises. For the avoidance of doubt, provision of, and compliance with, the undertakings given in this paragraph 2.5 is a Condition.

5. Record-keeping and reporting

In addition to any specific record-keeping and reporting obligations as described in the Conditions, you must comply with your record-keeping and reporting obligations as set out in section 159YD of the Education Act.

8. Investment Plan summaries

8.1 If you have not been granted an exemption under section 159U of the Education Act from the requirement to provide an Investment Plan, you must ensure that a plan summary is available for inspection by the public and that it otherwise complies with section 159YO of the Education Act. The simplest way to do this is to make the information public online. We recommend that your plan summary is published alongside your other accountability documents.

8.2 The requirements for what a plan summary must include are specified in the Gazette Notice: Education (Proposed Investment Plans: Requirements, Content, Submission and Assessment; and Plan Summaries) Notice 2016, and in section 159YO of the Education Act.

9. Entire confirmation

This Funding Confirmation sets out the entire understanding between you and us in relation to the Funding to be provided by us to you for the Funding Period. This Funding Confirmation supersedes all prior verbal or written communication relating to the provision of funding to be provided by us to you for the Funding Period (including all earlier communication in respect of the approval of funding made by the Chief Executive of TEC or any other TEC official).

10. No guarantee of further funding

It is important to understand that funding approval does not mean that we:

(a) approve any funding other than that specified in this Funding Confirmation. This includes any Indicative Funding which requires further approval to be made by us before such funding can be considered to be “approved”, or

(b) agree with every statement in your Investment Plan or Application for Funding, or

Funding Mechanism means a funding mechanism determined by the Minister pursuant to section 159L of the Education Act

Funding Period means the relevant funding period for each Fund as set out in Appendix 1

GST means tax charged under the Goods and Services Tax Act 1985

Indicative Funding means funding outlined in the Key Particulars that we intend to pay you in subsequent years, subject to future separate approval by us

Investment Plan means a plan submitted by you pursuant to section 159T(1) of the Education Act that has been prepared and assessed in accordance with the requirements set out in sections 159P to 159R and 159V to 159YA of the Education Act. For the purpose of this Funding Confirmation, Investment Plan also means any performance requirements set out in Appendix 3 where we have granted you an exemption pursuant to section 159U of the Education Act

ITO means a body corporate for the time being recognised under section 5 or section 8(1) of the Industry Training and Apprenticeships Act 1992

ITP means an institute of technology or polytechnic (being a polytechnic as defined in the Education Act)

Key Particulars means the ‘Key Particulars’ table on the first page of this Funding Confirmation

NSN means National Student Number

NZQA means the New Zealand Qualifications Authority

NZQF means the New Zealand Qualifications Framework

NZVCC means the New Zealand Vice-Chancellors’ Committee

On-Plan Funding or On-Plan Funds means, respectively, funding paid by us to you pursuant to section 159YA of the Education Act, or from a Fund to which section 159YA of the Education Act applies

Organisation means the Organisation as set out on the first page of this Funding Confirmation and all references to “you” and “your” are to the Organisation

Performance Commitments means the performance commitments as outlined in your Investment Plan or Application for Funding. For the avoidance of doubt this includes performance requirements outlined in Appendix 3 including for Plan exempt TEOs

PTE means a private training establishment

REAP provider means a rural education activities programme provider

SDR means the Single Data Return, which is the set of data items that are specifically required by the Ministry of Education and TEC for funding, monitoring performance, publishing performance information, as well as statistical reporting purposes

SDR Manual means the manual for TEOs and Student Management System Developers setting out the specifications of the Ministry of Education and TEC data requirements for the Single Data Returns for each academic year

TEC means the Tertiary Education Commission and all references to “we, “our” and “us” are to TEC

TEI meansan institution as defined in section 159 of the Education Act

TEO means an organisation defined in section 159B(1) of the Education Act

University means a body referred to or established under the Education Act

Wānanga means a body established under the Education Act

Withdrawal A “withdrawal” is when a student ceases to participate in a course, programme or training scheme (regardless of whether they have been refunded any fees), either by providing notice to the TEO that they wish to withdraw from participation, study and/or enrolment, or as a result of non-attendance or non-participation for any reason. Withdraw and Withdrawn have corresponding meanings.

11.2 Interpretation

Unless the context otherwise requires:

(a) headings are not to be used for interpretation

(b) the Introduction forms part of this Funding Confirmation

(c) the singular includes the plural and vice versa

(d) a reference to documentation (including this Funding Confirmation) includes a reference to that document as varied, supplemented or substituted from time to time

(e) a reference to any legislation or policy includes a modification of that legislation or policy or, in the case of legislation, legislation enacted in substitution for that legislation and a regulation, order-in-council and other instrument from time to time issued or made under that legislation

(f) a reference to an Appendix is a reference to an appendix to this Funding Confirmation

(g) a reference to a Schedule or Attachment is a reference to a schedule or attachment (as applicable) to this Funding Confirmation

(h) a reference to a paragraph is a reference to a paragraph in this Funding Confirmation

(i) whenever the words ‘includes’ or ‘including’ are used in this Funding Confirmation, they are deemed to be followed by the words “without limitation”, and

(j) if there is any conflict between the terms of the Funding Confirmation and any other documents, including your Investment Plan or Application for Funding, the terms of this Funding Confirmation will prevail.